                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                      December 30, 2005
                                 TENTH CIRCUIT
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 03-4298
          v.                                              D. Utah
 SCOTT D. HEMSLEY, also known as               (D.C. No. 2:02-CR-87-01-ST)
 Scott Dick Hemsley, also known as
 Scooter,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HENRY, HARTZ, and TYMKOVICH, Circuit Judges.


      Scott Hemsley pleaded guilty to manufacture or attempted manufacture of

methamphetamine in violation of 21 U.S.C. § 841(a)(1) and possession of a

firearm by a restricted person in violation of 18 U.S.C. § 922(g)(3). On

December 8, 2003, he was sentenced in accordance with the United States

Sentencing Guidelines to 188 months in prison followed by 60 months’

supervised release. On appeal Mr. Hemsley contends that (1) the district court


      *
       This order and judgment is not binding precedent, except under the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.
erred in adopting a 33% iodine-to-methamphetamine conversion ratio in its drug-

quantity calculations, and (2) the district court violated United States v. Booker,

543 U.S. 220 (2005), in factfinding that increased his sentence. We have

jurisdiction under 18 U.S.C. § 3742(a) to review Mr. Hemsley’s sentence. We

affirm.

I. BACKGROUND

      On February 6, 2002, Mr. Hemsley and various friends and family members

were named in a six-count indictment charging drug and firearm offences. The

charges stemmed from a search of the Hemsley residence by the Salt Lake City

Police Department (SLCPD) on December 11, 2001. Among the items found in

the search were a fully operable clandestine methamphetamine laboratory in a

bedroom closet, numerous pieces of drug paraphernalia located throughout the

residence, packaging material and scales, a loaded .40 caliber firearm in a vehicle

outside the residence, a loaded Tech 9 firearm in the bedroom closet, and

quantities of red phosphorous, pseudoephedrine, methamphetamine, iodine, and

marijuana.

      The Hemsleys’ 12-year-old daughter, who was present at the home, was

taken into protective custody by the Division of Child and Family Services after

being examined by the Primary Children’s Medical Center and medically cleared.




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A test conducted on the child’s hair showed that she had metabolized

amphetamine.

      The SLCPD’s investigation showed that over the course of several months

Mr. Hemsley had purchased, and directed several of the codefendants to purchase,

82 ounces (2,324 grams) of iodine, a precursor to methamphetamine.

Mr. Hemsley ultimately pleaded guilty to one count of manufacturing

methamphetamine, see 21 U.S.C. § 841(a)(1), and one count of possession of a

firearm by a restricted person, see 18 U.S.C. § 922(g)(3). His offense level under

the Sentencing Guidelines was calculated as follows:

      Base Offense Level under U.S.S.G. § 2D1.1(c)(2)                       36
      Enhancement for possession of a firearm under
       U.S.S.G. § 2D1.1(b)(1)                                               +2
      Enhancement for creating a substantial risk of harm to the
       life of a minor under U.S.S.G. § 2D1.1(b)(5)(C)
       (now U.S.S.G. § 2D1.1(b)(6)(C))                                      +6
      Enhancement for being the manager or supervisor of the
       criminal activity under U.S.S.G. § 3B1.1(b).                         +3
      Reduction for Acceptance of Responsibility under U.S.S.G. § 3E1.1.     -3
      Reduction for successful post-offense rehabilitation.                  -2
      Reduction for providing material assistance to the government
       under U.S.S.G. § 5K1.1.                                               -7

      Total Offense Level                                                   35

The base offense level of 36 was calculated as follows: First, the amounts of

relevant chemicals were established: 174.85 grams of pseudoephedrine, 11.9

grams of actual methamphetamine, 4.1 grams of a substance containing

methamphetamine, 1.32 grams of marijuana, and 2,324.7 grams of iodine. (The

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small amount of marijuana found in the residence was not included in the drug

quantity calculations, however, because it was determined to be for personal use.)

Second, the quantities of three of the chemicals were converted to their marijuana

equivalents using the drug equivalency tables in U.S.S.G. § 2D1.1 application

note 10: 174.8 grams of pseudoephedrine equate to 1,748 kilograms of marijuana,

11.9 grams of actual methamphetamine equate to 238 kilograms of marijuana, and

4.1 grams of a substance containing methamphetamine equate to 8.2 kilograms of

marijuana. Because iodine is not included in the drug equivalency tables,

conversion of the iodine to a marijuana equivalent involved an additional step of

first converting it to a methamphetamine equivalent. The 2,324.7 grams of iodine

was multiplied by 33% to equal 767.2 grams of actual methamphetamine. The

767.2 grams of methamphetamine was then equated to 15,344 kilograms of

marijuana. Third, the marijuana equivalents for the quantities of

methamphetamine were added to the marijuana equivalent for the “quantity of the

single [precursor] chemical that results in the greatest offense level,” U.S.S.G

§ 2D1.11 App. Note 4(A), in this case, iodine. Mr. Hemsley’s total marijuana

equivalent was 15,590.2 kilograms, which resulted in a base offense level of 36.

See § 2D1.1(c)(2).

      Based on Mr. Hemsley’s criminal history category of II, the district court

found the applicable sentencing range to be 188-235 months. Consistent with the


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government’s recommendation, Mr. Hemsley was sentenced at the bottom of that

range. This appeal followed.

II. IODINE-TO-METHAMPHETAMINE CONVERSION

      Mr. Hemsley first argues that the district court erred in its calculation of

the applicable quantity of methamphetamine. He argues that there was

insufficient evidence, even under a preponderance-of-the-evidence standard, to

support the district court’s adoption of a 33% factor for converting iodine to

methamphetamine. This argument faces a major hurdle, however, because it was

not raised in district court.

      The 33% conversion ratio first appeared in the presentence report (PSR).

The PSR calculated that the 82 ounces (2,324.7 grams) of iodine purchased for

the manufacturing operation would produce 767.2 grams (33% x 2,324.7) of

methamphetamine. Mr. Hemsley filed a variety of objections to the PSR’s drug-

quantity calculations, but, contrary to his assertion on appeal, he did not

specifically object to the iodine-to-methamphetamine conversion factor. The

objection he cites to us was the following:

      3. Defendant asserts that the iodine be assessed only at the level of
      methamphetamine which could be produced from the iodine and
      other precursors located at the Defendant’s home, and he asserts that
      the iodine cannot be used to manufacture methamphetamine
      independent of other chemicals.




                                         -5-
App. Vol. 1 at 98–99. But this objection does not challenge the proposition that

the weight of methamphetamine produced using a quantity of iodine is equal to

33% of the weight of the iodine. Rather, it argues that the quantity of

methamphetamine to be used in calculating the offense level cannot exceed the

amount that could be manufactured with the chemicals found in the residence. In

other words, the objection argues that the amount of iodine for sentencing

purposes should be capped at the amount that could have been used in

methamphetamine production given the amount of other precursors found at the

lab. We refuse to construe general objections to the drug-quantity calculation as

applying to all potential calculations and conversions necessarily involved in that

determination.

      Furthermore, at Mr. Hemsley’s request the district court held an evidentiary

hearing on the issue of the drug-quantity calculation, and the appropriate iodine-

to-methamphetamine conversion ratio was not challenged at the hearing. After

the hearing the district court ordered the Probation Office to provide further

information on the calculations related to pseudoephedrine and iodine quantities.

The Probation Office responded with a four-page memorandum, which included

the foundation for the 33% ratio. Although Mr. Hemsley now attacks that

foundation (and the district court’s adoption of the ratio in reliance on it) as

inadequate, in district court he made no objection to the conversion ratio or the


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Probation Office’s memorandum. We therefore conclude that Mr. Hemsley failed

to object below to the use of the 33% conversion ratio.

      Because Mr. Hemsley did not object to the 33% conversion ratio in the

district court, our review is only for plain error. See Jones v. United States, 527

U.S. 373, 389 (1999). Plain error exists when there is (1) error, (2) that is plain,

and (3) that affects substantial rights. Id. If all three conditions are met, the

court may then exercise its discretion to notice a forfeited, plain error, but only if

(4) the error “seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” Id. (alteration in original, internal quotation marks

omitted).

      “This court has held repeatedly that factual disputes not brought to the

attention of the [trial] court do not rise to the level of plain error.” United States

v. Svacina, 137 F.3d 1179, 1187 (10th Cir. 1998). In Svacina the defendant’s

appeal raised for the first time an objection that the government had produced no

evidence that the methamphetamine he distributed was D-methamphetamine rather

than L-methamphetamine (before November 1, 1995, the drug equivalency tables

distinguished between D- and L-methamphetamine). Id. at 1185-87. We said,

“This is precisely the kind of issue that should be raised at sentencing, if not

before, so that a record sufficient to permit adequate review is thereby

developed.” Id. at 1187 (internal quotation marks omitted). The same is true


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here. Because of Mr. Hemsley’s failure to object, the government was denied

notice that the iodine-to-methamphetamine conversion ratio was contested and

thus the opportunity to present supporting evidence. See id. (“As a factual issue,

an objection is the only means by which a party can give notice that an

evidentiary hearing is required or that the government has a burden it has not

met.”).

      Although the district court “may not satisfy its obligation by simply

adopting the presentence report,” United States v. Farnsworth, 92 F.3d 1001,

1011 (10th Cir. 1996), it may “adopt[] the presentence report as relevant and true

after an analysis of [its] findings and Defendant’s objections thereto.” Svacina,

137 F.3d at 1183. In the absence of any objection by the defense, the district

court was entitled to find facts in accordance with the Probation Office’s

representation that the “amounts of iodine were calculated pursuant to

information received from the Drug Enforcement Administration (DEA). The

DEA representative noted that an ultra-conservative ratio of converting iodine to

methamphetamine (actual) would be 3:1 or .33, given the method used by the

defendants to manufacture methamphetamine in the clandestine lab.” App. Vol. 2

at 183. Accordingly, we hold that there was no plain error justifying reversal

with respect to this issue.

III. BOOKER ERROR


                                         -8-
      Mr. Hemsley argues that he is entitled to resentencing based on the district

court’s constitutional error under United States v. Booker, 543 U.S. 220 (2005).

“A district court commits constitutional Booker error when it applies the

Guidelines in a mandatory fashion, makes factual findings (other than the fact of

prior convictions), and imposes a sentence above the maximum that would apply

in the absence of such findings.” United States v. Clark, 415 F.3d 1234, 1238

(10th Cir. 2005) (internal quotation marks and emphasis omitted). In this case the

district court found by a preponderance of the evidence the following facts that

increased Mr. Hemsley’s offense level: (1) the offense created a substantial risk

of harm to a minor child; (2) the quantity of iodine purchased as part of the

manufacturing conspiracy could be expected to yield 33% of that quantity of

methamphetamine; and (3) Mr. Hemsley was the manager or supervisor of

criminal activity involving at least five persons.

      When a Booker issue is not raised in the district court, we review the

sentence only for plain error. United States v. Dazey, 403 F.3d 1147, 1174 (10th

Cir. 2005). As discussed above, “[p]lain error occurs when there is (1) error, (2)

that is plain, which (3) affects substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” United States

v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (internal quotation marks

omitted.).


                                          -9-
      Constitutional Booker error satisfies the first two prongs of the plain-error

test. Clark, 415 F.3d at 1240. The defendant can meet his burden to satisfy the

third prong, which requires that the error “affected the outcome of the district

court proceedings,” Dazey, 403 F.3d at 1175 (internal quotation marks omitted),

by showing a reasonable probability that the district court would impose a

sentence outside the applicable guidelines range if the case were remanded, or by

showing a reasonable probability that a jury, applying the beyond-a-reasonable-

doubt standard, would not have found the facts necessary to enhance the sentence.

Id. If the defendant satisfies the third prong, the fourth prong still requires him to

show that the error “seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (internal quotation

marks omitted). Although we conduct this review less exactingly in cases of

constitutional Booker error, see Dazey, 403 F.3d at 1174, it is still a “demanding

standard,” Gonzalez-Huerta, 403 F.3d at 737.

      Here, the government concedes that the district court engaged in fact-

finding that amounted to constitutional Booker error in Mr. Hemsley’s sentence.

Therefore, we need only analyze whether Mr. Hemsley has satisfied his burden on

the third and fourth prongs of the plain-error inquiry. Because the fourth prong

imposes such a high burden, Booker-error cases are often resolved on the fourth

prong rather than the third. See United States v. Lawrence, 405 F.3d 888, 906


                                         -10-
(10th Cir. 2005) (“This court need not answer the question whether a defendant

can show prejudice under the third prong of the plain-error test if the defendant

cannot also demonstrate that the district court’s error seriously affected the

fairness, integrity, or public reputation of judicial proceedings . . . .”).

“[S]entencing error meets the fourth prong of plain-error review only in those rare

cases in which core notions of justice are offended.” Id. (internal quotation marks

omitted). Because we conclude that Mr. Hemsley cannot meet this burden, we

need not address the third prong.

      In United States v. Bass, 411 F.3d 1198, 1205 (10th Cir. 2005), we

addressed a similar plain-error claim. Mr. Bass was convicted on five counts of

knowing possession of child pornography after an investigation found more than

2000 images on his computer. Id. at 1200. He was sentenced, however, under the

guideline governing offenses involving trafficking in child pornography. Id. at

1202. Although he did not object at sentencing to application of the trafficking

guideline, we held that the district court had committed plain error and remanded,

noting: “Although the PSR asserted, and the district court in turn found, that the

offenses at issue involved trafficking in, as opposed to mere possession of, child

pornography, neither the PSR nor the district court offered a rationale for the

finding, and there is little evidence in the record to support such a finding.” Id. at

1205. We identified four factors as directing that we should exercise our


                                           -11-
discretion under the fourth prong to correct the error in Mr. Bass’s sentence.

First, we considered that the error was constitutional in nature, because the

burden of plain-error review is imposed less rigorously in such cases. Id.

Second, we considered the “complete lack of record support for the district

court’s finding.” Id. Third, we considered that the error increased the

defendant’s offense level. Id. And, finally, we considered “indications . . . that

[the district court] might have selected a lower sentence had it had the discretion

to do so.” Id.

      We now evaluate these four factors in Mr. Hemsley’s case. As in Bass, the

errors in Mr. Hemsley’s sentence are constitutional in nature and increased the

offense level for which he was sentenced. Mr. Hemsley’s case significantly

differs from Bass, however, in the application of the other two factors.

      In contrast to Bass, Mr. Hemsley’s sentencing enhancements are not

plagued by a “complete lack of record support.” Id. Mr. Hemsley does not

challenge the sufficiency of the evidence with respect to the district court’s

preponderance-of-the-evidence findings regarding child-endangerment and his

role in the offense. As for the iodine-to-methamphetamine conversion ratio, the

supplemental information provided by the Probation Office reported that “[t]he

DEA representative noted that an ultra-conservative ratio of converting iodine to

methamphetamine (actual) would be 3:1 or .33, given the method used by the


                                         -12-
defendants to manufacture methamphetamine in the clandestine lab.” App. Vol. 2

at 183. Mr. Hemsley did not challenge the conversion ratio below, and we are not

inclined to presume that if he had, the DEA would have been unable to support its

assertion.

      Moreover, we cannot assume, as in Bass, that the district court’s having

sentenced Mr. Hemsley at the bottom of his guideline range suggests that the

court would have reduced the sentence still further had it known that under

Booker it had that discretion. Circumstances here compel the opposite inference.

To begin with, the district court expressed satisfaction with the sentence imposed:

      [T]he Court believes that under the totality of the circumstances of
      this case, in light of what the defendant originally faced if the
      government had not made its effort to bring Mr. Hemsley more in
      line with the other defendants by bringing a felony information in
      place of the indictment, and in light of the argument that [the
      government] made, that the Court agrees with fully, that were it not
      for Mr. Hemsley, the other defendants in all likelihood would not be
      where they are, the Court believes that this sentence . . . of 188
      months is consistent relative to culpability of the defendants in this
      case.

App. Vol. 1 at 172-73. Mr. Hemsley has not pointed us to anything indicating

that the court would feel differently upon remand. And, more importantly, the

district court actually possessed and exercised discretion to depart from the

guidelines in imposing the original sentence. It granted a departure under

U.S.S.G. § 5K1.1 because of Mr. Hemsley’s assistance to the government. Under

§ 5K1.1 the court “retains discretion to depart to the degree it finds appropriate,

                                        -13-
regardless of a specific recommendation by the government.” United States v.

Ollson, 413 F.3d 1119, 1121 (10th Cir. 2005). The district court clearly

understood the nature of its discretion under § 5K1.1—it granted a seven-level

departure although the government had requested only a five-level reduction in its

motion for downward departure. Given the district court’s exercise of discretion,

it would be too speculative to suppose that the court would reduce the sentence

further under Booker. See id. (holding nonconstitutional Booker error harmless

because the court had acted under § 5K1.1 discretion in the original sentencing).

      Accordingly, we hold that affirming Mr. Hemsley’s sentence will not

“seriously affect[] the fairness, integrity, or public reputation of judicial

proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (internal quotation marks

omitted). On the record before it the district court is not likely to revisit its

sentence, and there is no unfairness in denying Mr. Hemsley a second opportunity

to challenge the factual support for the sentencing enhancements.

IV. CONCLUSION

      We AFFIRM the sentence imposed by the district court.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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