                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      July 7, 2008
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.
                                                        No. 07-6072
 MICHAEL DEWAYNE MAYTUBBY,                           (W.D. Oklahoma)
 also known as Tecc Loc, also known            (D.C. No. 5:06-CR-00136-M-1)
 as Tecc,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before MURPHY, McKAY, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, and upon the court’s own

motion, this panel determined that oral argument would not materially assist in

the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). An order was previously entered submitting this case on the briefs.




      *
        This order and judgment is not binding precedent except under the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.
      Michael Maytubby was convicted of eight drug and firearm related charges.

In calculating his offense level under the Sentencing Guidelines, the district court

included drug quantities that had previously been suppressed at trial. Maytubby

appeals the district court’s inclusion of the suppressed quantities in the

calculation of his offense level. Taking jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), this court holds that the district court properly

considered the suppressed drug quantities.

I. Background

      Maytubby was charged in an eleven-count indictment on a variety of drug

trafficking and firearm offenses. He filed a motion to suppress evidence gathered

in two separate searches of his home, which occurred on July 6, 2005, and

October 17, 2004, and a search of his vehicle. The district court denied the

motion as to the October 17 search and the search of the vehicle. It granted the

motion, however, to suppress evidence seized in the July 6 search, concluding the

search was conducted in violation of the Fourth Amendment. Counts nine, ten,

and eleven of the indictment related to the events of July 6. Count nine charged

Maytubby with possession with intent to distribute crack cocaine, cocaine, and

marijuana in violation of 21 U.S.C. § 841(a)(1). Counts ten and eleven charged

firearms violations under 18 U.S.C. §§ 922(g)(3), 924(c)(1)(C)(I). After the

evidence was suppressed, counts nine, ten and eleven were dismissed. A jury

convicted Maytubby on the eight remaining charges.

                                          -2-
      The presentence report (PSR) included in its Sentencing Guidelines

calculations the drug quantities seized in the July 6 search, which were

suppressed by the district court at trial. Maytubby objected to the inclusion of the

July 6 quantities in his sentencing memorandum and at his sentencing hearing.

The district court overruled his objection, determining, based on United States v.

Ryan, 236 F.3d 1268, 1272 (10th Cir. 2001), that evidence suppressed at trial may

be considered by the sentencing court. Maytubby filed a notice of appeal.

II. Discussion

      On appeal, Maytubby asks this court to reverse his sentence based on a

miscalculation of the Guidelines range. See United States v. Todd, 515 F.3d

1128, 1135 (10th Cir. 2008) (“When a district court does err in calculating the

applicable Guidelines range, we must remand for resentencing . . . .”).

Specifically, he argues the district court erred in including the suppressed drug

quantities from the July 6 search in its calculation of the Guidelines range. He

claims the dictionary definition of the word “suppress” demonstrates that

suppressed evidence no longer legally exists and cannot be considered by the

court under any circumstances. When considering the calculation of a Guidelines

range, this court reviews legal questions, such as the one presented here, de novo.

United States v. Tom, 494 F.3d 1277, 1281 (10th Cir. 2007).




                                         -3-
      In United States v. Ryan, this court held a district court does not err in

relying on evidence obtained during an illegal search during sentencing. 1 236

F.3d at 1272. Maytubby acknowledges the holding in Ryan is directly on point in

this case, but argues that this court can disregard that holding because Ryan did

not address the dictionary definition of the word “suppress.” This argument is

without merit. “Under the doctrine of stare decisis, this panel cannot overturn the

decision of another panel of this court.” United States v. Meyers, 200 F.3d 715,

720 (10th Cir. 2000). Absent en banc reconsideration or superseding Supreme

Court authority, this court is bound by our prior precedent. Id.; see also United

States v. VanDam, 493 F.3d 1194, 1198 n.2 (10th Cir. 2007) (holding the panel

could not overrule Ryan absent en banc reconsideration or supervening Supreme

Court precedent). Accordingly, we apply Ryan and hold the district court did not

err when it considered previously suppressed drug quantities in calculating the

applicable Guidelines range.




      1
        There is an exception to this rule when there is evidence the officers’
illegal conduct was undertaken with the intent to secure an increased sentence.
United States v. Ryan, 236 F. 3d at 1272. Maytubby, however, does not argue the
officers conducting the July 6 search intended to increase his sentence.

                                          -4-
III. Conclusion

       For the foregoing reasons, this court AFFIRMS the sentence imposed by

the district court.

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




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