                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 7 2003
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 02-7119
v.                                             (Eastern District of Oklahoma)
                                                  (D.C. No. 02-CR-23-S)
DONALD LACRUCE MILLER,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      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. 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       This order and judgment is not binding precedent, except under the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. 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.
      Defendant, Donald LaCruce Miller, owned and operated the Miller Farm

Center in Sallisaw, Oklahoma, where he sold supplies used to care for horses. At

the Miller Farm Center, Miller sold iodine crystals which can be used for

legitimate purposes in caring for horses but can also be used to manufacture

methamphetamine, a controlled substance.

      On November 23, 1999, several Drug Enforcement Agency (“DEA”)

agents, acting upon intelligence information, visited Miller at the Miller Farm

Center. The agents informed Miller that criminal penalties could be assessed

against an individual who sold iodine crystals and had a reasonable belief that the

crystals would be used to manufacture a controlled substance. Miller told the

agents that he occasionally sold two ounce bottles of iodine crystals.

      On three separate occasions in September 2000, an undercover agent

purchased large quantities of iodine crystals from Miller at the Miller Farm

Center. The undercover agent also purchased four gallons of iodine tincture from

Miller on September 7, 2000.

      On September 11, 2001, a search warrant was executed at the Miller Farm

Center and Miller’s residence. During the search, 10.375 pounds of iodine

crystals were recovered. From 1998 until September 11, 2001, the Miller Farm

Center had purchased 4840.5 pounds of iodine crystals for resale, fifty-one

pounds of which were stolen during a burglary. Miller informed the agents


                                         -2-
conducting the search that between 85 and 90 percent of his total iodine sales

between 1998 and September 11, 2001 were for unlawful purposes. Accordingly,

it was determined that Miller sold approximately 4062.25 pounds of iodine

crystals for unlawful purposes.

      On March 20, 2002, Miller was charged in a twelve-count indictment with:

conspiracy to distribute a listed chemical and material in violation of 21 U.S.C. §

846; possession and distribution of listed chemicals in violation of 21 U.S.C. §

841(c)(2) and 18 U.S.C. § 2; conspiracy to commit money laundering in violation

of 18 U.S.C. § 1956(h) and 18 U.S.C. § 2; money laundering in violation of 18

U.S.C. § 1956(a)(1)(A)(i) and 18 U.S.C. § 2; and criminal forfeiture in violation

of 21 U.S.C. §§ 841(c), 841 (d), 846, 853. All counts were tried to a jury.

      Daryl Charlton, an Oklahoma State Bureau of Investigation chemist,

testified at trial that the amount of iodine crystals Miller sold for unlawful

purposes, i.e., 85 percent of the iodine crystals actually sold between 1998 and

September 11, 2001, would yield 1110 pounds of methamphetamine. Charlton

also reported in the presentence report (the “PSR”) that this same amount of

iodine crystals would convert to 1861 kilograms of hydriodic acid.

      The jury convicted Miller on all counts. Utilizing the 2001 Sentencing

Guidelines, the district court set Miller’s base offense level at 28 based on the

amount of iodine crystals attributed to his criminal conduct. The district court


                                          -3-
sentenced Miller to 87 months’ imprisonment; 36 months’ supervised released; a

special assessment of $1100; and forfeiture of the Miller Farm Center in Sallisaw,

Oklahoma, $250,000, and all funds held in two separate bank accounts at First

National Bank of Sallisaw, Oklahoma. Miller appeals his sentence, arguing that

the district court violated the Ex Post Facto Clause of the United States

Constitution when it sentenced him under the 2001 Sentencing Guidelines instead

of the 2000 Sentencing Guidelines.

         Miller failed to object to the application of the 2001 Sentencing Guidelines;

therefore, this court reviews only for plain error. United States v. Malone, 222

F.3d 1286, 1296 (10th Cir. 2000). “To establish plain error [the defendant] must

show: (1) an error, (2) that is plain, which means clear or obvious under current

law, and (3) that affects [the defendant’s] substantial rights.” United States v.

Whitney, 229 F.3d 1296, 1308 (10th Cir. 2000) (quotation omitted). Plain error

review, however, is inappropriate “when the alleged error involves the resolution

of factual disputes.” United States v. Easter, 981 F.2d 1549, 1556 (10th Cir.

1992).

         Typically, a defendant is sentenced under the version of the Sentencing

Guidelines in effect at the time of sentencing. United States v. Farrow, 277 F.3d

1260, 1264 (10th Cir. 2002). “The Ex Post Facto Clause, however, prohibits

retroactive application of an amended guideline provision if the amendment


                                           -4-
disadvantages the defendant.” United States v. Orr, 68 F.3d 1247, 1252 (10th

Cir. 1995) (quotation omitted). To constitute an ex post facto violation, the law

“must be retrospective, that is, it must apply to events occurring before its

enactment; and second, it must disadvantage the offender affected by it.” Miller

v. Florida, 482 U.S. 423, 430 (1987).

      Under the 2001 Sentencing Guidelines, the version of the Sentencing

Guidelines in effect at the time of Miller’s sentencing, iodine was categorized as

a List II chemical and the base offense level of 28 was set for the quantity of

iodine crystals possessed and distributed by Miller in violation of 21 U.S.C. §

841(c)(2). U.S.S.G. § 2D1.11(e)(2) (setting the base offense level of 28 for an

offense involving the quantity of 376.2 grams or more of iodine). Iodine,

however, was not listed as a chemical in § 2D1.11 of the 2000 Sentencing

Guidelines, the version in effect at the time Miller committed the criminal

conduct at issue in this case. 1 “If the offense is a felony or Class A misdemeanor

for which no guideline expressly has been promulgated, [the court must] apply the

most analogous offense guideline.” U.S.S.G. § 2X5.1. Therefore, if Miller was

sentenced under the 2000 Sentencing Guidelines he would be sentenced under the




      Iodine was specifically designated as a List II chemical by the
      1

Comprehensive Methamphetamine Control Act of 1996, 21 U.S.C. § 802(35)(I).

                                          -5-
guideline which is most closely analogous to possession and distribution of iodine.

      As reported in the PSR, iodine crystals are used to create hydrogen iodide

which, in the presence of water, becomes hydriodic acid, a List I chemical that is

a reagent used in the production of methamphetamine. This fact was also utilized

by the 2001 Sentencing Guidelines to determine the penalties for offenses

involving iodine. U.S.S.G. App. C. Supp., amend. 625 at 205. Therefore, the

closest offense guideline to distribution of iodine is either the guideline levels for

unlawfully distributing, importing, exporting, or possessing hydriodic acid or for

unlawfully manufacturing, importing, exporting, or trafficking methamphetamine.

U.S.S.G. §§ 2D1.11, 2D1.1. Charlton determined that the amount of iodine

crystals Miller distributed for unlawful purposes would convert to 1861 kilograms

of hydriodic acid. 2 The 2000 Sentencing Guidelines establishes a base offense

level of 30 for an offense involving 44 kilograms or more of hydriodic acid.

U.S.S.G. § 2D1.11(d)(1). At trial, Charlton also testified that the amount of

iodine crystals Miller distributed for unlawful purposes would yield 1110 pounds

of methamphetamine. The 2000 Sentencing Guidelines establishes a base offense

level of 38 for an offense involving 15 kilograms or more of methamphetamine.


      2
         Miller argues that the estimates of hydriodic acid and methamphetamine
that could be derived from the quantity of iodine crystals attributed to Miller’s
criminal conduct were not supported by sufficient evidence. However, there can
be no plain error review of this factual question. See United States v. Easter, 981
F.2d 1549, 1556 (10th Cir. 1992).

                                          -6-
U.S.S.G. § 2D1.1(c)(1). Therefore, because Miller would have received a higher

base offense level under the 2000 Sentencing Guidelines, he was not

disadvantaged by the application of the 2001 Sentencing Guidelines.

Consequently, there is no ex post facto violation.

      For the reasons stated above, this court AFFIRMS Miller’s sentence.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




                                         -7-
