                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     February 23, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court



    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                  No. 06-6101
                                                  (D.C. No. CR-05-94-2-R)
    GILBERT COOPER BATEM AN, III,                       (W .D. Okla.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.


         Defendant-Appellant Gilbert Cooper Bateman, III appeals his conviction

for possession with intent to distribute methamphetamine, asserting that the

evidence was insufficient. He does not challenge his conviction for conspiracy to

possess and distribute methamphetamine. He also appeals his sentence on the

ground that the district court violated his constitutional rights when it considered




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
evidence of drug quantity not found by the jury. W e exercise jurisdiction under

28 U.S.C. § 1291, vacate the conviction for possession with intent to distribute

methamphetamine, and affirm the sentence.

                                    Background

      In the summer of 2003, Oklahoma state and federal drug task force agents

investigated a methamphetamine distribution ring in the Oklahoma City area.

They discovered that Jennifer Lujan was distributing methamphetamine to various

individuals, including M r. Bateman, his then-girlfriend Brandi Hodges, and his

friend Charles Council. M r. Bateman was charged with four criminal counts

based on his participation in a conspiracy to distribute methamphetamine.

Following a jury trial, he was convicted on two counts: conspiracy to possess and

distribute methamphetamine, in violation of 21 U.S.C. § 846, and possession with

intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). He

was acquitted of the remaining two counts.

      On a special verdict form, the jury found that the quantity of drugs

involved was “less than 500 grams but 50 grams or more of a mixture or

substance containing a detectable amount of methamphetamine.” R. Vol. I,

Doc. 93 at 1. W hen sentencing M r. Bateman, however, the district court found by

a preponderance of the evidence that the drug quantity attributable to

M r. Bateman w as not less than 500 grams. Accordingly, the court imposed a




                                         -2-
sentence of 165 months based on the greater drug amount. 1 M r. Bateman

contends that his maximum sentence was 121 months based on the jury’s finding

of drug quantity.

                            Sufficiency of the Evidence

      M r. Bateman first argues that the evidence was insufficient to support his

conviction on Count 2 for possession with intent to distribute methamphetamine

under § 841(a)(1). He contends that the evidence showed only that he and his

friend Charles Council were joint users who shared the methamphetamine they

received from M s. Lujan.

             W e review de novo the issue of whether there is sufficient
      evidence to sustain a jury verdict. W e must examine the evidence in
      the light most favorable to the prosecution to determine whether any
      rational trier of fact could have found the essential elements of the
      crime beyond a reasonable doubt.

United States v. Brooks, 438 F.3d 1231, 1236 (10th Cir. 2006) (citation and

quotation omitted).

      To establish that a defendant violated § 841(a)(1), the prosecution must

prove beyond a reasonable doubt that he “(1) possessed the controlled substance;

(2) knew he possessed the controlled substance; and (3) intended to distribute or

dispense the controlled substance.” United States v. M cKissick, 204 F.3d 1282,

1291 (10th Cir. 2000). M r. Bateman concedes that the evidence was sufficient on



1
      The court imposed concurrent sentences of 165 months on each count, plus
supervised release and a monetary assessment.

                                        -3-
the first two criteria, but he asserts that no evidence demonstrated that he

intended to distribute or dispense methamphetamine. “[I]n the context of a drug

trafficking case, [the term ‘distribute’] means to intentionally deliver narcotics to

another person.” United States v. Cherry, 433 F.3d 698, 702 (10th Cir. 2005)

(quotation omitted), cert. denied, 126 S. Ct. 1930 (2006).

      M r. Bateman contends that the evidence did not show that he distributed

methamphetamine at the place alleged in Count 2, which was the residence of his

friend Charles Council, during the time alleged, the winter of 2002. See R.

Vol. 1, Doc. 14 at 3. The evidence pertaining to M r. Bateman’s drug activities at

the time and place charged came from M r. Council. He testified that he and

M r. Bateman used methamphetamine together and it was “like [Council] and

[Bateman] buying it together.” R . Vol. 4 at 233-34. Although M r. Council

distributed drugs to others, he did not consider M r. Bateman a customer; rather,

they took “care of each other, you know, as a drug addict.” Id.

      There was no evidence that M r. Bateman’s drug use at the Council home

was associated with any of the customary accouterments of drug distribution, such

as scales, packaging materials, firearms, or large amounts of cash, from which the

jury could infer that he was a distributor. Cf. United States v. Verners, 53 F.3d

291, 294 (10th Cir. 1995) (holding presence of materials used to distribute drugs

supported jury’s finding that defendant was involved in the distribution of drugs).

Similarly, there was no evidence that M r. Bateman possessed more

                                          -4-
methamphetamine than was consistent for personal use. Cf. United States v.

Nicholson, 17 F.3d 1294, 1299 (10th Cir. 1994) (“An intent to distribute may be

inferred from the possession of a large quantity of a controlled substance.”).

      Finally, the government points to events occurring well after the time

period charged in Count 2 at places other than M r. Council’s home to support its

argument that there was evidence that M r. Bateman w as distributing

methamphetamine. The record indicates that M r. Bateman distributed

methamphetamine he received from M s. Lujan, but it also shows that the two did

not meet until 2003, R. Vol. 4 at 119, 267, after the time period charged in

Count 2, the winter of 2002. The government points to no sales transaction

occurring at M r. Council’s residence and our review of the record reveals none.

The government’s case on Count 2 required the jury to infer that because

M r. Bateman was distributing drugs in 2003, he must also having been doing so in

the winter of 2002. “[T]he jury should not have been allowed to substitute its

belief about what probably occurred for what the government actually proved.”

United States v. Jones, 49 F.3d 628, 633 (10th Cir. 1995). Accordingly, we

conclude that the jury’s guilty verdict on Count 2 was based on speculation and

conjecture, rather than evidence, and we cannot allow the guilty verdict to stand.

See id. at 632-33. The conviction for possession with intent to distribute

methamphetamine is therefore vacated.




                                         -5-
                                       Sentence

      M r. Bateman also challenges his sentence, claiming that the district court

violated his Sixth Amendment rights by basing his sentence on a drug quantity

higher than that found by the jury. The district court found by a preponderance

that M r. Bateman’s Guidelines range should be based on a drug quantity that

included two pounds of methamphetamine M s. Lujan left in his apartment during

the night of October 22-23, 2003. M r. Bateman maintains that the court

impermissibly rejected the jury’s finding of drug quantity.

      “W hen reviewing a district court’s application of the Sentencing

Guidelines, we review legal questions de novo and we review any factual findings

for clear error, giving due deference to the district court’s application of the

guidelines to the facts.” United States v. Patterson, 472 F.3d 767, 781 (10th Cir.

2006). Specifically, because M r. Bateman made his Sixth Amendment argument

at sentencing, we review that issue de novo. United States v. Stiger, 413 F.3d

1185, 1191 (10th Cir.), cert. denied, 126 S. Ct. 775 (2005). A sentencing court is

required to consider the Guidelines in determining a sentence, but it is not

required to impose a sentence within the Guidelines range. United States v.

Booker, 543 U.S. 220, 259 (2000).

      M r. Bateman does not challenge his conviction for conspiracy to possess

and distribute methamphetamine. In addition, he acknowledges that the district

court properly applied the Guidelines and treated them as advisory, rather than

                                          -6-
mandatory. Rather, he objects to being sentenced based on judge-found facts as

to drug quantity, rather than on the jury’s special verdict of drug quantity. He

asserts that the court constitutionally was required to base his sentence on the

lower drug quantity found by the jury, rather than on the greater quantity the

judge determined by a preponderance of the evidence.

      M r. Bateman’s argument is foreclosed by circuit precedent holding “that

when a district court makes a determination of sentencing facts by a

preponderance test under the now-advisory Guidelines, it is not bound by jury

determinations reached through application of the more onerous reasonable doubt

standard.” United States v. M agallanez, 408 F.3d 672, 685 (10th Cir.),

cert. denied, 126 S. Ct. 468 (2005); accord United States v. Hall, 473 F.3d 1295,

1312 (10th Cir. 2007) (“‘After Booker, a constitutional violation lies only where a

district court uses judge-found facts to enhance a defendant's sentence

mandatorily under the [Guidelines], and not where a court merely applies such

facts in a discretionary manner.’”) (quoting United States v. Rodriguez-Felix,

450 F.3d 1117, 1130 (10th Cir.), cert. denied, 127 S. Ct. 420 (2006)); Patterson,

472 F.3d at 781 (“[T]here is clear precedent in this circuit that, under Booker’s

advisory regime, a district court may make Sentencing Guidelines calculations

using facts found by the judge.”); United States v. Bustamante, 454 F.3d 1200,

1202 (10th Cir. 2006) (same). As explained in M agallanez,




                                         -7-
      [D ]istrict courts are still required to consider Guideline ranges,
      which are determined through application of the preponderance
      standard, just as they were before. The only difference is that the
      court has latitude, subject to reasonableness review, to depart from
      the resulting Guideline ranges. . . . [W ]hen a district court makes a
      determination of sentencing facts by a preponderance test under the
      now-advisory Guidelines, it is not bound by jury determinations
      reached through application of the more onerous reasonable doubt
      standard. In this respect, the prior Guidelines scheme is unchanged
      by the seeming revolution of Booker.

M agallanez, 408 F.3d at 685 (citation omitted).

      M r. Bateman attempts to distinguish his case from M agallanez by pointing

out that he preserved his Sixth Amendment claim, while the M agallanez

defendant did not. Consequently, the M agallanez defendant received only plain

error review on appeal. “[B]ut this distinction makes no difference: the[] cases

unequivocally establish that, so long as the district court applies the Guidelines in

an advisory, rather than a mandatory, fashion, it may rely on facts found by a

judge to be true based on a preponderance of the evidence.” Bustamante,

454 F.3d at 1202. M r. Bateman does not challenge on appeal the district court’s

finding that the greater drug quantity was established by a preponderance of the

evidence. Accordingly, we conclude that the district court’s sentencing decision

did not violate M r. Bateman’s Sixth Amendment rights.




                                          -8-
      For the foregoing reasons, we VACATE the conviction for possession with

intent to distribute methamphetamine, and AFFIRM the sentence.

                                                Entered for the Court


                                                David M . Ebel
                                                Circuit Judge




                                      -9-
